Frenemies: Why the FTC Should Explore the Utility of State COPAs to Address Anticompetitive Consolidation in Healthcare

Authors

Alicia Gilbert

Abstract

Much like other ‘90s trends, Certificates of Public Advantage (COPAs) are making a comeback. States have the potential to use COPAs as a unique healthcare antitrust enforcement mechanism. Rather than following a regime that exclusively focuses on price and output like traditional antitrust analysis, COPAs allow for greater consideration of other efficiencies, such as quality and access to care. And COPAs are designed to protect consumers through regulation rather than by protecting competition. Yet the policy position of the Federal Trade Commission (FTC) on COPAs ignores these opportunities, blanketly viewing COPAs as a threat to competition. This Article critiques the FTC’s position as shortsighted and recommends an alternative position that views COPAs as a part of states’ cooperative role in antitrust enforcement. This stance could allow policymakers to better regulate healthcare consolidation by addressing a variety of factors, including healthcare cost, quality, and access to care. This Article builds on other scholarship that has advocated for cooperative enforcement solutions to improve healthcare antitrust enforcement. It also builds on the relatively limited scholarship on COPAs to date. It is the first Article to focus exclusively on the potential role of COPAs in addressing the negative effects of healthcare consolidation. It is also the first to respond to the FTC’s 2022 COPA Policy Paper.

Repository Citation

Alicia Gilbert, Frenemies: Why the FTC Should Explore the Utility of State COPAs to Address Anticompetitive Consolidation in Healthcare, 85 La. L. Rev. (2024)
Available at: https://digitalcommons.law.lsu.edu/lalrev/vol85/iss1/7